TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 326
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....e Limited', observing as follows: "9. The second issue to be decided is whether the petitioner proved get, the debt and the liability of the respondent-corporate debtor to pay the same per the demand notice (Annexure-l) dated 20.09.2018 of the petitioner an amount of 830,05,590/- pertaining to Season 2 was due and an amount of c34.46.000/- in respect of Season 3 was due totalling an amount of 265.41.590/ was due from the respondent-corporate debtor. In reply to the said contention. the respondent-corporate debtor in its reply stated that it has paid an amount of 21.25 crores as against the agreement requirement of 21.20 crores in respect of Season 2 and has aid 21 crore in full and final settlement in respect of Season 3 for which no agreement was entered into. The petitioner, in spite of the specific averments made by the respondent-corporate debtor in its reply, has not chosen to dispute the same by filing any rejoinder to the said reply. The petitioner has also not denied the contention of the corporate debtor that the invoices raised in respect of Season 3 were not in accordance with the work done and the amount. for the service was over charged and accordingly an amount of 2....
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....l Debt'. Section 8 mandates the complete procedure for the initiation of Corporate Insolvency Resolution Process, ('CIRP') and once 10 days has passed and no payment is received or no Notice of dispute is raised under Section 8(2), then the Application enters the jurisdiction realm of the Adjudicating Authority and the wheels of CIRP process will start to roll. It is contended that the Adjudicating Authority should not seek to go beyond what is an express mandate of the Statute particularly when the Statute is clear in its interdict. Learned Counsel, placed reliance on paragraphs 35 and 38 of 'Mobilox Innovations Private Limited' Vs. 'Kirusa Software Private Limited' (2018) 1 SCC 353, in support of his submissions. The relevant paras read as follows: "35. ...The corporate debtor is given 10 days from the date of receipt of demand notice or copy of invoice to either point out that a dispute exists between the parties or that he has since repaid the unpaid operational debt. If neither exists, then an application once filed has to be disposed of by the adjudicating authority within 14 days of its receipt, either by admitting it or rejecting it...." "38. It is, thus, clear that so ....
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....the Respondent has paid the TDS for the years 2015-16 and has also paid for the year 2016-17 and 2017-18 and has never disputed the invoices sent to it by email. It is further the case of the Appellant Counsel that the Appellant had issued a Legal Notice to the Respondent on 24.10.2017 for which there was no response and therefore the Adjudicating Authority was not justified in dismissing the Application filed under Section 9 of the Code. 8. Learned Sr. Counsel Mr. Arvind Nayar appearing for the Respondent contended that some of the documents filed by the Appellant herein (I.A.78/2022) were not part of the record before the Adjudicating Authority; that the Appellant did not choose to rebut the submissions made by the Respondent/'Corporate Debtor' before the Adjudicating Authority by filing a Rejoinder. The same was recorded by the Adjudicating Authority in their Order dated 04.09.2019. It is submitted that no Agreement was entered into for Seasons-1 & 3; that as per 'Settled Terms', total consideration for the services for PWL for Season-1 was Rs.1.75Crs./- and not Rs.2,23,29,790/- as claimed by the Appellant; after proper negotiations an Agreement dated 29.12.2016, was entered in....
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.... which reads as hereunder: "8. Insolvency resolution by operational creditor (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor - (a) existence of a dispute, if any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the payment of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation. - For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding 3[....
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....pute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if - (a) the application made under sub-section (2) is incomplete; (b) there has been payment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under subclause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section." 13. It is observed from the aforenoted Sections....
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....s to be rejected by the Adjudicating Authority. The above provision clearly indicates that even in absence of notice of dispute, Adjudicating Authority can reject the Application if there is record of dispute in the Information Utility. It goes without saying that record of dispute in the Information Utility can very well be pointed out by the Corporate Debtor before the Adjudicating Authority when notice is issued under Section 9. Further in Reply to Section 9 Corporate Debtor can bring the material to indicate that there are pre-existing disputes in existence prior to issuance of demand notice under Section 8. We thus are of the considered opinion that mere fact that Reply to notice under Section 8 (1) having not been given within 10 days or no reply to demand notice having been filed by the Corporate Debtor does not preclude the Corporate Debtor to bring relevant materials before the Adjudicating Authority to establish that there are pre-existing dispute which may lead to the rejection of Section 9 application. In the above context, we may refer to Judgement of this Tribunal in "Neeraj Jain Vs. Cloudwalker Streaming Technologies Private Limited" (Company Appeal (AT) Ins. No. 135....
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.... to the Bank to stop 'payment'. Admittedly, no action has been initiated under Section 138 of the Negotiable Instrument Act, 1881. As there was no Agreement entered into for Season-3, there is no documentary evidence on record to establish that any amount was 'due and payable' by the Respondent herein. There is no communication on record to establish that the Appellant was entitled by some provisions/promise that this particular amount was liable to be paid. 17. The Hon'ble Apex court in 'Mobilox Innovations Private Limited' Vs. Kirusa Software Pvt. Ltd.' while discussing the 'Pre-Existing Disputes' has observed as follows: "51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the ....